TPD: Legal Challenges

Contents

Background

In April 2014, the European Union (EU) adopted the EU Tobacco Products Directive (2014/40/EU) (TPD), which regulates the manufacture, presentation and sale of tobacco products in the Member States. It took five years for the TPD to be adopted, with a spokesperson of the European Parliament describing the TPD as “the most lobbied dossier in the history of the EU institutions”.[1]

Legal Challenges

The TPD was challenged in the European Court of Justice (ECJ) by several parties:

UK-based e-cigarettes company Totally Wicked is challenging the legality of Article 20 which holds provisions on e-cigarettes.[2]

Philip Morris International (PMI) and British American Tobacco (BAT) brought two separate claims against the TPD, alleging that the TPD is without a valid legal basis, that elements are disproportionate and do not comply with the principle of subsidiarity, and that too much power is delegated to the European Commission.[3] Although not complainants, Japan Tobacco International (JTI) and Imperial Tobacco are supporting the claims as "interested parties". Other “interveners” supporting the claim were: Tann UK limited and Tannpapier GmbH, V Mane Fils, Deutsche Benkert GmbH & Co. KG and Benkert UK limited, Joh. Wilh. Von Eicken GmbH.[4] In December 2014 both cases were jointly referred to the ECJ.

In July 2014, Poland announced its intention to challenge the legality of the TPD’s characterising flavours ban, in particular the ban on menthol cigarettes, claiming that it will be unfairly affected as one of the EU’s biggest consumers and producers of menthol cigarettes.[5] Poland's claim was formally supported by Romania.

On 23 December 2015, ECJ's Advocate General Kokott issued her preliminary Opinions on the cases above, offering the Court judges a legal solution in complete independence. Kokott concluded that the 2014 TPD was valid and lawfully adopted, "in particular the extensive standardization of packaging, the future EU-wide prohibition on menthol cigarettes and the special rules for e-cigarettes".[6]

In May 2016, the European Court of Justice ruled that the Tobacco Products Directive, which permits Member States to
implement standardised packaging, was lawful.[7]